Greg Abbott’s Power Grab on Bail Reform

Abbott’s executive order blocking jail releases during a pandemic highlights conservative opposition to the growing movement to end wealth-based detention in Texas.

On March 26, 15 people incarcerated in the massive jail looming over Buffalo Bayou in downtown Houston wrote a joint letter predicting a “catastrophic outbreak” of the novel coronavirus if officials didn’t act fast to lower the inmate population.

The letter, first reported by the Houston Chronicle, echoed warnings from public health experts that jails are petri dishes for the potentially deadly virus and, due to high turnover, could endanger not only inmates but also the communities they return to. In their letter, which the Observer also obtained, the inmates argued that precautions by jail officials to prevent the spread of COVID-19 were woefully inadequate, writing that cleanliness and social distancing aren’t options behind bars. “Under this situation, it is impossible to stay calm, people are panicking and nobody wants to die in jail,” the letter stated. (The recipient, worried about the potential for retaliation, has asked that publications withhold the signers’ names.)

Three days later—the same day the facility reported its first inmate had tested positive for the virus—Governor Greg Abbott issued an executive order hobbling local efforts to release defendants. While sheriffs in Houston and San Antonio have committed to “substantially” reducing their jail populations in order to protect inmates, staff, and the public, the governor’s order demands that officials keep a broad group of people behind bars if they can’t afford bail. The sweeping order blocks judges from releasing indigent defendants on personal bonds—no-cost bonds that often carry other non-monetary conditions of release—if they’re accused or have previously been convicted of a violent crime, even for a conviction stemming from a bar fight 20 years ago.

Abbott’s office gave only vague justification when issuing the order, calling it a “response to concerns of the release or anticipated release of individuals because of COVID-19 who are deemed a danger to society.”

As the virus spreads in lockups across Texas, state officials are now fighting on several fronts to restrict who judges can let out. Texas Attorney General Ken Paxton, who has himself been out of jail on personal bonds for a trio of felony charges for nearly 5 years, cited Abbott’s order in an attempt to stall an ongoing lawsuit over bail reforms in Harris County. On Monday, Paxton again cited Abbott’s order to intervene in a more recent lawsuit filed by the ACLU of Texas seeking the release of elderly and medically vulnerable inmates at the Dallas County jail, which is now reporting the highest number of inmates who have tested positive for the virus in the state.

Meanwhile, all 16 of Harris County’s misdemeanor court judges are now plaintiffs in a lawsuit by civil rights groups and criminal defense organizations seeking to block Abbott’s executive order, accusing the governor of overstepping his authority and encroaching on the powers of another branch of government. Darrell Jordan, one of the judges, says that Abbott’s order forces him to put a price tag on the pretrial freedom of defendants who are legally innocent, even if he determines they’re not a flight or public safety risk and that other conditions of release would ensure their appearance in court. “In other words, in addition to removing my discretion, the order is attempting to dismantle the constitutional framework that binds my work and that protects the residents in our community,” Jordan wrote in a recent filing in the case.

After a hearing in the case on Friday, Lora Livingston, a state district judge in Travis County, blocked enforcement of Abbott’s executive order, saying the governor had taken the extraordinary step of stripping away judges’ power and subjecting them to possible criminal action “with little or no rationale in coping with the current health crisis.” Livingston wrote that Abbott’s actions appeared to be based on “an unsubstantiated fear that the judges of the state will abandon their legal obligation to balance the interests of the public, individuals accused, but not convicted of criminal offenses, and the victims of those alleged offenses.” On Saturday, following an appeal by Paxton’s office, the Texas Supreme Court blocked Livingston’s decision, allowing Abbott’s order to stand while the all-Republican court considers the case.

Abbott’s executive order is one of the governor’s strongest statements yet against the growing movement for bail reform that’s started to shift politics and policy around criminal justice and public safety in Texas’ largest cities. Despite building bipartisan consensus on moving away from cash bail, the governor largely waffled on the issue last legislative session though he promised to push for reforms. The judges suing Abbott say the governor is now interfering with local reforms that were recently negotiated as part of a consent decree in a landmark civil rights lawsuit against Harris County. While that legal battle chipped away at wealth-based detention in Texas’ largest county, Abbott’s order reverts to the old status quo: It only keeps certain poor defendants in jail, while wealthy people charged with the same crime and with the same criminal history could still pay their way out.

While judges in Harris County say local prosecutors flooded them with motions to deny personal bonds citing Abbott’s order, other district attorneys in the state have bristled at the governor’s attempt to restrict jail releases during the pandemic. On Tuesday, reform-minded DAs in Dallas, Bexar, Fort Bend, and Nueces counties signed an amicus brief before the state Supreme Court saying Abbott’s order “offends the Constitution, limits the ability of courts to address the unique circumstances of each case, adversely impacts those who cannot afford money bail, and inhibits the reduction of jail populations that is particularly critical in the face of the COVID-19 pandemic.” The prosecutors said that Abbott’s order “does not advance public safety and, instead, puts our communities at risk.”

Defense attorneys say that Abbott’s executive order has slowed proceedings, caused confusion in courts across the state, and hobbled local efforts to respond to the crisis. Steve Brand, a board member with the Austin Criminal Defense Lawyers Association, one of the plaintiffs in the suit against Abbott, says poor defendants who would have otherwise been released are now stuck in jail because of the governor. He called the governor’s order “a repugnant violation of the Constitution, just a complete power grab.”

Legal filings by state lawyers point to recent instances where they argue that judges shouldn’t have let indigent defendants out on personal bonds. While some were accused of violent crimes, all were pretrial detainees, meaning they’re innocent until proven guilty, and it doesn’t appear any have been accused of other crimes since their release.

“When I look at the examples cited in the state’s brief, it’s just the state saying, ‘We didn’t like these judges’ decisions on these individuals’ bonds,” Brand told the Observer. “Well that’s OK, but then there’s an election process and you can gin people up to run against them if you disagree with them so much. But you can’t just take that authority away from them because you don’t like their decision.”

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